The living tree doctrine forms the foundation of the Canadian justice system. This principle continually prompts academia to explore new perspectives and arguments concerning various facets of the Canadian immigration system.
Haider Ashraf, in his paper, "Balancing Security and Rights: Re-evaluating IRPA’s Criminal Inadmissibility Provisions and Charter Compliance” recommends a re-evaluation of IRPA’s inadmissibility provisions to better protect the rights of permanent residents and align Canadian policies with global human rights principles. The author welcomes any comments or conversations from colleagues on the topic.
He writes,
This paper argues that criminality provisions of IRPA create dual standards in the criminal justice system. Permanent residents despite their long-term connection to Canada, their integration in the Canadian society and family ties may loose their legal status in Canada because of the IRPA’s criminality provisions. Chiarelli, Revell, Moretto are not only the names of the legal cases argued in the Courts. These are in fact the painful stories of permanent resident or potential citizens who lost their legal status in Canada because of the IRPA’s inadmissibility provisions. Immigration regime has an inbuilt dichotomy that unfortunately places the permanent residents at disadvantage.
This paper criticizes the approach taken by the Supreme Court of Canada vis a vis protection of Charter Rights of the inadmissible permanent residents. The Charter’s protection extended to “Everyone” fails to safeguard the rights of permanents residents when it comes to criminal provisions of IRPA. S.6 of the Charter has been widely used by the Supreme Court to introduce immigration exceptionalism and accept differential treatment of permanent residents i.e; a Canadianized version of plenary power doctrine. This paper argues that inadmissibility based on criminality infact is discriminatory, cruel and unusual punishment that constitute double jeopardy. It is probably the time for the Supreme Court to examine the criminality provisions of IRPA with the prism of the Charter.
For those interested in exploring further, the complete paper can be found here:
https://www.oba.org/CBAMediaLibrary/cba_on/pdf/Balancing-Security-and-Rights-ISRP.pdf
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